For petitioners
Shri A.R. Shivhare, Advocate for the petitioners in both petitions.
For Respondents
Shri Dilip Singh Tomar, Public Prosecutor for the respondent No.1/State in both petitions.
Shri Awadesh Singh Bhadoriya, Advocate for the respondent No.2 in both petitions.

ORDER

( 24 .11. 2017)

1. This order shall govern the disposal of M.Cr.C. No. 4325/2017 and so also M.Cr.C. No. 7317/2017.

3. Learned counsel for the rival parties are heard on the question of admission.

4. Brief facts giving rise to the present petitions are that the prosecutrix got married to Subodh Rajawat on 30.04.2012 at Gwalior. It is alleged by the prosecutrix that two lakh rupees were gifted by her parents at the marriage along with one motorcycle and golden chain weighing 35 grams and two rings. After the prosecutrix started her marital life, she came to know that her husband is impotent. The prosecutrix alleges that she was asked by the relatives of the husband not to disclose this fact to anybody otherwise she would be subjected to physical beating. The prosecutrix further alleges that she used to be taunted by her (mother-in-law) Smt. Munni Devi, Pramod Singh (Jeth), Snt, Savita (Jethani), Smt. Sunita Singh Kushwah (Nand) and Raju @ Nagendra Singh Chauhan (Nandoi) that her parents have given less dowry and on this issue, she was physically assaulted. The prosecutrix did not disclose this fact to her parents or anyone else due to fear of disrepute. This prosecutrix also alleges that whenever Raju @ Nagendra Singh Chauhan (Nandoi) and Smt. Sunita Singh Kushwah (Nand) used to come down to Gwalior, they used to instigate the other relatives of the husband to subject the prosecutrix to cruelty. When the instance of cruelty crossed the unbearable limit, prosecutrix informed her parents. The parents of the prosecutrix came down to matrimonial home to resolve the issue but they were told by the relatives of the husband that if they did not give another five lakh rupees as dowry, the prosecutrix will be M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017 continued to be subjected to cruelty. The prosecutrix also alleges that the thought of committing suicide crossed her mind on several occasions. The prosecutrix lastly states that she was driven out of the matrimonial home and asked to returned only when her father pays five lakh rupees as dowry.

5. The above said instances were translated into written complaint made by the prosecutrix which let to registration of offence u/S. 498-A of IPC and 34 of Dowry Prohibition Act as Crime No. 213/16 at Police Station Gole Ka Mandir, Gwalior District Gwalior. During the investigation, the statements of witnesses i.e. prosecutrix herself, Smt. Maya (mother of the prosecutrix), Smt. Nisha @ Sonu (sister of the prosecutrix) were recorded which were in the same lines as the allegations in the FIR.

6. Learned counsel for the petitioners in both the cases has relied upon the decisions of Apex court in the case of Preeti Gupta and Another Vs. State of Jharkhand and Another reported in (2010) 7 SCC 667 to contend that the allegations in the FIR and as well as in the charge-sheet are non-specific and therefore, vague which cannot be used for taking cognizance or framing charge or conducting the trial against the petitioners.

7. The principal offence is punishable u/S. 498-A of IPC which for ready reference and convenience reproduced below:-

“498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purpose of this section, “cruelty” means–

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

8. The plain reading of section 498-A of IPC discloses that the heart and soul of the provisions is infliction of cruelty to a woman by her husband and his relatives. The term cruelty has been elaborated in the “explanation” mentioned supra which is part of the statutory provision of section 498-A of IPC. The basic ingredients necessary for constituting cruelty contemplated u/S. 498-A of IPC is a willful conduct of such nature which is likely to drive the prosecutrix to commit suicide or to cause grave injury or danger of life, limb or health of the prosecutrix. The explanation further clarifies that the grave injury contemplated therein can be mental and as well as physical in nature. The explanation also provides that expression “cruelty” would also include harassment meted out to the prosecutrix with a view to coerce her or any of her relative to meet any unlawful demand for any property or valuable security or on account of failure by her or any person related to her to meet such demand.

9. The above said provision has been incorporated in the penal code w.e.f. 25/12/83 to tackle malady of mental and physical cruelty inflicted upon the wife by her husband and his relatives within or without the walls of her matrimonial home. Since such instances in the society had become rampant, the legislature stepped in and introduce the provision of Section 498-A of IPC which if proved, attracts punishment for a term which may extend to three years with fine. This court in it’s attempt of analyzing section 498-A of IPC is supported by the decision of Apex Court in the case of Neelu Chopra and Another Vs. Bharti reported in (2009) 10 SCC 184. The M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017 relevant portion of which is reproduced below:-

“9. In order to lodge a proper compliant, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.

10. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.

11. The High Court has merely mentioned that the allegation in the complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the jewellery. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh.

12. This is apart from the fact that despite service of notice, the complainant neither appeared before this court nor engaged any counsel to represent her. Under the circumstances we are of the opinion that the judgment of the High Court deserves to be set aside. It is, accordingly, set aside and the order of the learned Magistrate taking cognizance is quashed. The complaint is quashed under Section 482 Cr.P.C.”

10. After introduction of above said section 498-A of IPC in the statue books, the wives were protected against the matrimonial cruelty to a considerable extent. However, as time passed and the social fabric of the society advanced and changed from a conservative to more individualistic and commercial character, the instances of misuse of section 498-A of IPC emerged where the said provision also started to be used an arm twisting tactics against the husband and his relatives by the wife and her parents. The said change in the social set up brought to the fore cases of attempts by the disgruntled women to camouflage themselves as prosecutrix and use the provision M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017 of section 498-A IPC as a weapon to wreck vengeance against her husband and his relatives. This change in the attitude of the victim was noticed by the Apex Court in one of it’s recent decisions in the case of Monju Roy Vs. State of West Bengal Ors. reported in (2016) 2 SCC (Cri) 340. The relevant portion of which is reproduced below:-

“8. While we do not find any ground to interfere with the view taken by the courts below that the deceased was subjected to harassment on account of non-fulfillment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not ruled out. In Kans Raj, this Court observed :

“5………A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”

The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.

13. Accordingly, we allow this appeal, set aside the conviction and sentence of the appellants under Section 304B IPC without interfering with conviction and sentence under other heads. Since the appellants are said to have already undergone the sentence awarded for other charges which may be verified, they may be released from custody forthwith unless required in any other case. “

11. The least that is required for constitution of an offence to enable the court to take cognizance and frame charge is that the basic ingredients prescribed under the relevant statue defining the said offences are satisfied by the allegations made in the FIR and the supportive material in the charge-sheet.

12. Testing the factual matrix in the present two cases on the anvil of discussion made above, it is seen from the FIR dated 6/4/16 Annexure A-1 that the allegation of cruelty is made in a very vague and non-specific manner which is evident from use of the following expressions in the complaint of the prosecutrix:-

In the above said allegations, there is total absence of description of the kind of cruelty inflicted, specific instances of cruelty (mental and/or physical) and whether any complaint in that regard was made in the last about 3-4 years.

13. Another relevant factor in both these cases, which weighs in the mind of the court, is that both the petitioners in M.Cr.C. No. 7317/17 were not residing in the matrimonial home as both being posted as constables in the police since 2009 while petitioners in were residing at Indore since last more than 6 years. The factum of residence has been established by the petitioners by filing relevant documents i.e. voter I.D. Card issued by election commission Indore, ration card and Adhar card.

14. The Apex Court in various of it’s pronouncements has held that the criminal prosecution can not be sustained if the same is based on non-specific and vague allegations which do not constitute the offence of cruelty.

15. Testing the factual matrix attending the instant case on the anvil of law laid down by the Apex Court and the discussion made above, this court has no hesitation to hold that the allegations made in the FIR and the charge-sheet fall desperately short of the basic minimum requirement of constituting an offence punishable u/S. 498-A of IPC and therefore, the prosecution launched based upon the impugned M.Cr.C. No. 4325/2017 M.Cr.C. No. 7317/2017 FIR cannot be sustained.

16. Consequently, both the petitions (M.Cr.C. No. 4325/2017 and M.Cr.C. No. 7317/2017) are allowed and as a necessary consequence FIR dated 6/4/16 bearing crime No. 213/16 registered at Police Station Gole Ka Mandir District Gwalior and all it’s consequential proceedings so far as it relates to the offence punishable u/S. 498-A of IPC stand quashed.

17. Except the offence punishable u/S. 498-A of IPC, if the petitioners are facing prosecution in connection which other offence, then the same would proceed in accordance with law.